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Long Overdue: The Need for an Examination of the Specter of Racial Bias in the Federal Death Penalty System
Get PDFThe specter of racial bias in the federal government\u27s administration of the death penalty over the past thirty-five years has been long apparent yet insufficiently scrutinized. Scholars have studied the racially disparate application of capital punishment at the state level and linked those disparities to a history of racialized violence. The federal death penalty, especially with regard to the impact of race, however, remains largely unexamined. It is time to bridge this gap in the research on racial bias in the criminal justice system and in the implementation of the federal death penalty specifically. There are, as this Article sets forth, troubling indicia of the continuing influence of race in the federal death penalty system that require further investigation. These include entrenched racial disparities in its current application, policies and practices adopted by federal officials that reinforce the disparities, and emerging evidence of racial bias in the historical development of the federal death penalty in the wake of the Civil War. This Article calls for an in-depth-and long overdue-examination of the issue
Uniform Maine Citations, 2024-2025 Edition (Superseded)
Get PDFUniform Maine Citations is organized so that similar types of references to Maine authorities appear together. The organization is grouped by primary or secondary research materials, including subdivisions for (1) statutory and legislative materials, including constitutions, statutes, legislative documents, and municipal ordinances; (2) court decisions, rules, and documents; (3) executive agency regulations, reports, and other documents; and (4) secondary materials that analyze and interpret the primary materials, including Maine-specific treatises, practice books, and legal periodicals. Beyond guidance for proper citation, the primary and secondary sources identified in this edition constitute a useful catalog of materials available to support research into Maine legal authority and sources that discuss them. Further, Uniform Maine Citations identifies the major law libraries and the state and federal court and state government websites that provide free access to primary sources for Maine-specific legal research materials. Maine Uniform Citations undertakes to provide annually updated guidance for the proper form for citation to and location of Maine-specific primary and secondary legal source material. As with the editions that most recently preceded it, this edition is published on the University of Maine School of Law website alongside the Maine Law Review page and is updated at least annually on the academic calendar to recognize new developments and new sources of Maine-related legal research.https://digitalcommons.mainelaw.maine.edu/uniform-maine-citations/1019/thumbnail.jp
Milton v. Cary Medical Center: A Viable Fetus is Not a Person Under Maine\u27s Wrongful Death Statute
Get PDFIn Milton v. Cary Medical Center, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, refused to recognize a right of action for the wrongful death of a viable fetus. The court held that a viable fetus is not a person for purposes of applying Maine\u27s wrongful death statute and that, consequently, the mother of a stillborn child could not maintain an action for the child\u27s death. The court determined that the legislative history of the statute indicated that the Legislature did not intend the remedy to apply in the case of a child not born alive. The issue was one of first impression for the Law Court, which chose in a four-to-three decision to adopt the position of a dwindling minority of American jurisdictions. This Note examines the reasoning of the Milton court in denying relief for the wrongful death of a viable fetus and concludes that the legislative history of the wrongful death statute did not compel the court\u27s decision. This Note agrees with the dissent that the Legislature simply had not spoken on the issue before the court and that, in the absence of any express legislative intent to the contrary, the court properly could have construed the word person as used in the wrongful death statute to encompass a viable fetus. Furthermore, this Note contends that recognition of a right of action for the wrongful death of a viable fetus is more logical, more equitable, and more effectual of the legislative purpose of the wrongful death statute than the rule announced by the court
A Reply to David Jones
Get PDFDuring my years of practice in Maine, I had the pleasure of litigating most of the issues discussed in my book, Maine Debtor-Creditor Law, with many members of Maine\u27s fine commercial and bankruptcy law bar. Among the lawyers with whom I litigated these questions is David Jones. In fact, one of the cases we litigated, a particularly thorny foreclosure action, was the impetus of an article that became portions of two of the chapters in my book. It is against this background that I was pleased to learn that one of my old adversaries from practice had agreed to review my book. In the course of his review, which includes positive comments I very much appreciate, Mr. Jones advances several criticisms to which I would welcome a more extensive response than I am able to provide here. These fall into one of two categories: (1) a misreading, in one form or another, of what I have said; and (2) a criticism based on oversimplification of complex issues. Given the prescribed limits of this reply, I concentrate in what follows on the most interesting of Jones\u27 oversimplifications
Taxpayer Standing and the Preventive-Remedial Distinction: A Call for Reform
Get PDFThe Maine Law Court has observed that, a central function of American courts [is] to protect and relieve the individual from injurious unconstitutional conduct by government officials. Apart from the political process, the judicial process is the only means through which citizens can ensure that government conforms to the law. The courts provide a forum for citizens to challenge the legality of official acts, and serve as a means of correcting illegal practices of government officials which would otherwise be irreparable. The question of standing is a critical element of the court\u27s task of balancing the individual\u27s right to challenge municipal actions against the state\u27s interest in protecting government officials from harassment by litigation. In Maine, the courts have adopted a rule designed to insure the preservation and efficient management of . . . essential elements of community life, and at the same time protect public spirited citizens, who may be disposed to serve [the community], from vexatious litigation. Maine courts have relied on the preventive-remedial doctrine to determine taxpayer standing in suits against municipalities, and to limit frivolous or multiple suits against municipal officers. The distinction between preventive and remedial relief is the heart of a long-established doctrine which governs the standing of [Maine] taxpayers to sue the municipalities in which they reside. The preventive-remedial distinction recognizes the right of taxpayers to apply to the court for preventive relief in the case of threatened unlawful action by municipal officers, while denying standing to plaintiffs seeking remedial relief for a wrong that has already occurred. The doctrine serves as a threshold bar that restricts access to the court system by denying standing to plaintiffs seeking non-preventive relief. Currently, Maine taxpayers have no right to apply for remedial relief after the commission of an illegal municipal act, where the act is one which affects the entire community and not specifically those bringing suit. Taxpayers who allege and prove injury shared by the public at large have standing to seek only preventive relief from actions by municipal officers. Traditionally, an individual citizen who suffers no particularized injury from a public wrong can not seek relief from the courts; relief vindicating public rights must be sought by . . . the Attorney General of the State of Maine. The Maine Attorney General is thus considered the only proper plaintiff when remedial relief is sought by a taxpayer without particular injury. When the injury claimed is one shared equally by all the members of the community the action must be brought by the Attorney General . . . as representative of not only the particular Plaintiffs who seek remedial relief bu the entire community. The Attorney General\u27s role in municipal actions has been justified as a means of preventing multiple suits against municipalities, and protecting municipal officers from litigation by dissatisfied taxpayers. Despite the important policy considerations that suppport application of the preventive-remedial rule, the doctrine is not without its critics. Commentators have noted the elusive quality of the preventive-remedial distinction, and the Law Court itself has admitted that the distinction is no bright line test. Additional criticisms have focused on the doctrine\u27s restrictive effect on taxpayer standing, causing one detractor to strongly recommend[] that [the state] more generously allow taxpayers and citizens to attack illegal action by their public servants. Recently, Maine\u27s Attorney General, appearing as amicus curiae in McCorkle v. Town of Falmouth, advocated a less restrictive approach to taxpayer standing, and argued that the Law Court should entirely abandon its preventive-remedial approach. The Attorney General\u27s criticism of the restrictive preventive-remedial rule is consistent with recent Law Court decisions in which the court questioned the continuing viability of the preventive-remedial doctrine. The Law Court has acknowledged the doctrine\u27s restrictive nature, and implied that limitations on taxpayer standing are no longer appropriate. Although the Law Court has not acted to abolish the doctrine, the court has noted that most of the policy considerations that once supported the preventive-remedial distinction may no longer exist, and has stated that the doctrine may presently have little more to commend itself than its age.” The acknowledged weaknesses of the preventive-remedial approach to standing suggest that a reevaluation of the preventive-remedial doctrine and its history is appropriate. Accordingly, this Comment reexamines the decisions that have shaped the preventive-remedial doctrine. Using McCorkle v. Town of Falmouth as a springboard, this Comment demonstrates that inconsistent application of the doctrine has reduced it to a vague, unworkable standard, and concludes that the preventive-remedial doctrine has become an inadequate, manipulative tool that should be replaced. Finally, this Comment discusses and recommends specific alternatives to the preventive-remedial doctrine that can accomplish the doctrine\u27s original objectives in a manner that is responsive both to the needs of litigating taxpayers and municipalities
Maine Civil Remedies by Andrew M. Horton & Peggy L. McGehee
Get PDFIf there is any ongoing dispute within the legal community that one could properly characterize as a Great Debate, that dispute concerns the nature and sources of judicial power. Most recently that debate has manifested itself in nuanced and subtle disagreements about how a court ought to interpret enacted law, whether found in statutes or written constitutions. That argument about judicial interpretation, and more precisely about the philosophical possibility of correct textual interpretations, is itself simply a more scholarly manifestation of an earlier dispute over whether judges should legislate when they resolve difficult legal issues, or should instead constrain themselves to a strict construction of the law. This debate about judicial power, so resistant to clear answer when directly addressed, has been helped along recently by Andrew M. Horton and Peggy L. McGehee in their 1988 treatise entitled Maine Civil Remedies. The authors, two well-known civil litigators in Portland, Maine, do not articulate in their preface a desire to wrestle with that lofty jurisprudential issue; rather, they seek more modestly to provide a book [that] will be helpful to members of the bench and bar in their daily work. Horton and McGehee have succeeded wonderfully in their intended purpose—as a practitioner\u27s treatise, Maine Civil Remedies is of such distinct scope and quality that it will surely become a fixture on the shelves of attorneys and judges across the State
Alternative Dispute Resolution in International Trade and Business
Get PDFThis workshop, which was held at the University of Maine School of Law on May 27, 1987, consisted of an informal discussion among an interdisciplinary group of experts. The purpose of the workshop was to generate ideas and recommendations regarding the utility of alternative dispute resolution (ADR) in international trade and business, with special reference to Canadian-United States trade relations. The discussion also explored the possible commonalties of domestic and international dispute resolution in the hope of developing a basis for a generic alternative dispute resolution methodology
Privatizing Dispute Resolution Under the Free Trade Agreement: Truth or Fancy?
Get PDFReplete with evidence of extensive forum shopping, unending discovery procedures, and countless delays in the formal adjudicatory process, the case for an alternative, more specialized medium for the resolution of trade disputes between the United States and Canada has grown more pressing. The problem, however, is in being convinced that the alternative, embodied in the proposed Canada-United States Free Trade Agreement, addresses the deficiencies in the existing medium for dispute resolution without introducing greater social and personal costs of its own. A government, in distancing itself from dispute resolution, also separates itself from the process through which social problems are resolved. Either it accepts that exclusion as impotence or it seeks to control the decisional process itself. The risk in both cases is to raise rather than reduce the cost of disagreement. The harm is that the inter-governmental agreement, formulated for resolving disputes, will actually encourage disputes. This problem is accentuated when the process of disagreement shifts from the differences between governments to differences between their private surrogates, i.e., between arbitrators who decide disputes in place of governments. The conflict is also extended when panels of experts from whom arbitrators are chosen to represent their nation state rather than the rightful claims of each disputing party. Whether or not this perception is wholly justified in fact, reality lies in the eyes of the beholder. The effect, in each case, is to add mistrust to the process of dispute settlement itself. This occurs when decisionmakers threaten the supposed objectivity of the settlement process; or when they decide on the basis of politics masquerading as conflict avoidance. Their neutrality grows increasingly suspect when they are expected to understand the particular political and economic interests of each party and yet never be biased by that understanding to the detriment of either. Knowledge of each party\u27s interests or aspirations is to serve only as a means towards an objective choice, not a way of displacing that choice for more partial ends. This paper has two essential objects: first, to address the divide between political and strictly legal resolutions of inter-governmental disputes and, second, to consider the benefit of the private commercial mechanism of arbitration in relation to a seemingly public dispute. The goal is to assess the extent to which private arbitral remedies can effect solutions between nations that previously employed diplomatic channels or protracted litigation
Joy v. Eastern Maine Medical Center: Extension of a Physician\u27s Duty to Third Parties
Get PDFIn Joy v. Eastern Maine Medical Center, the Maine Supreme Judicial Court, sitting as the Law Court, held that a claimant may sue a physician to recover damages for injuries that were caused by a negligently treated patient. The Law Court focused its analysis on the concept of duty and reasoned that a physician\u27s duty to his patient extends to third parties whose injuries are a foreseeable result of negligent treatment. The Joy case sets forth a broad rule that provides a new and untested means of recovery against physicians and hospitals. This Note examines the new rule against the backdrop of legislative endeavors to stabilize the medical malpractice insurance crisis. In this context, this Note argues that the court\u27s decision is contrary to public policy. This Note also analyzes the Law Court\u27s reasoning and contends that the breadth of the rule announced by the court is unsupported by the case law upon which the court relies. Finally, after reviewing relevant cases and social concerns, this Note suggests an alternative analysis that is consistent both with legal precedent and public policy